Fitzpatrick v. Flannagan
106 U.S. 648 (1882)

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U.S. Supreme Court

Fitzpatrick v. Flannagan, 106 U.S. 648 (1882)

Fitzpatrick v. Flannagan

Decided December 18, 1882

106 U.S. 648

Syllabus

1. Leave to amend the affidavit, by inserting a new ground for an attachment sued out in Mississippi, is not the subject of a valid exception, it not appearing that the defendant was thereby prejudiced.

2. Where a firm is dissolved by the death of one of its members, and no bill is filed by his representatives, or by the firm creditors seeking the intervention of a court of equity to wind up the business of the firm, marshal its assets, and apply them to the firm debts, the surviving partner may, by paying his individual indebtedness with those assets, make a disposition of them which is not a fraud in law upon the firm creditors nor, in the absence of an actual intent to defraud, a just ground for suing out an attachment under the statute of Mississippi.

3. Section 1420 of the Code of Mississippi of 1871, post, p. 106 U. S. 658, did not forbid an insolvent debtor to give a preference to one or more of his creditors, if it were bona fide and with no intent to secure a benefit to himself.

4. A continued recognition of his liability, and his agreement to discharge it after he has a full knowledge of all the facts in relation to which the alleged false representations were made at the time of his original promise, estops the party from setting them up as a defense to an action on that promise.

6. According to the practice of the Circuit Court in Mississippi, the judgment sustaining the attachment and the personal final judgment on the merits against the defendant are separate, and may be considered here separately on a writ of error brought to review the latter judgment.

The facts are stated in the opinion of the Court.

Page 106 U. S. 649

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